2002 PLP 1098 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑In above‑noted petitions identical question of law is involved, therefore we intend to dispose them of by this common judgment.

2. Precisely stating question invoked in the instant cases is whether doctrine of sinker will be applicable where a vendee had joined with him a stranger while purchasing a property which otherwise is separately identifiable and both the purchasers have paid separately consideration to the vendor.

3. Respondent Mst. Zaib Elahi daughter of Haji Muhammad Khan filed a suit for possession through pre‑emption in respect of the property details whereof were mentioned in the plaint against petitioner Khamisa and respondent Nabi Bakhsh. Suit was contested by both the defendants. The plea of Nabi Bakhsh was that he had preferential right being a tenant on the property purchased by him. Learned High Court vide impugned judgment placed reliance on the judgment titled as Abdullah and 3 others v: Abdul Karim and others (PLD 1968 SC 140) and decreed the suit of respondent Mst. Zaib Elahi to the extent of property which was purchased by Khamisa entering into Khasra No.320/1000 following the principle that the shares of both the vendees are set out specifically in the sale‑deed and contribution of the sale price is made by the vendor individually. However, her suit was dismissed against respondent Nabi Bakhsh as it was decreed only to the extent of share of land purchased by Khamisa.

4. The judgment of the High Court dated 16‑11‑1982 has been assailed by the Khamisa vendee in C.P. No.769‑L of 2000 and Mst. Zaib Elahi in 943‑L of 2000.

5. We have heard the learned counsel and have also gone through the impugned judgment carefully. It may be noted that learned counsel appearing for Khamisa himself pointed out that the judgment in the case of Abdullah and others (ibid) has been reconfirmed by this Court in the case of Ghulam Muhammad and 11 others v. Bakhsh and 5 others (PLD 1991 SC 563) relevant para. from this report is reproduced hereinbelow for convenience: "

7. It was clearly laid down as the law of the land in Muhammad Khan v. Abdul Khaliq Khan (PLD 1981 SC 153) in the following words:‑‑ ' ....to find out whether such a sale is divisible, the Court is to see two things viz. (i) whether the share of each vendee is specified, and (ii) whether proportion of price contributed or paid by each vendee is indicated separately. If any of these two ingredients is lacking, then the sale remains one joint indivisible sale...:.'" "

8. Again, the case of Wezir Muhammad and others v Abdul Aziz and another 1982 SCMR 189 the same law was repeated in the following words:‑‑ 'The superiority of the plaintiffs' claim is disputed on the assumption that the sale was divisible, distinct and could be protected in the case of one of the vendees. This is said on the ground that out of 29 shares of Suleman sold 13 were to be shared equally by Wazir Muhammad and Nazir while 16 were of Ghulam Rasool, the sale consideration being 50,

000. Such a sale was not divisible. The finding of fact concurrently recorded by all the Courts does not require interference.'" "Similar was the recognition in Mangta v. Lab Din and others (1982 SCMR 282) and Muhammad Ismail and others v. Karamat Ali (PLD 1989 SC 474). Hence, no case is made out on this ground in these two Review Petitions (Civil Revision Petitions Nos.80 and 81 of 1990). " Following the dictum laid down by the Court in the above case and having gone through the relevant documents, we are inclined to conclude that as per sale‑deed dated 6‑6‑1977 the shares of Ghulam Nabi and Khamisa are devisable and both of them had contributed proportionally towards the sale price. Therefore, the view taken by the learned High Court in the impugned judgment calls for no interference. Thus for the foregoing reasons petitions are dismissed and leave to appeal id declined. S. A. K. /K‑51/S leave refused.